Overview of the L-1 visa category for intra-company transferees

June 19, 2015

Jacob T. Muklewicz

InsideCounsel

This article is part one of a two part series on the L-1 visa category, which is available to foreign nationals who work for a U.S. company's foreign parent, subsidiary, affiliate or branch office for at least one aggregate year within the three years immediately preceding the filing of an L-1 petition. A foreign national must have worked for a qualifying corporate entity abroad in an executive, managerial or specialized knowledge capacity. Following the transfer to the U.S., the foreign national must continue working in one of these capacities.

The position that the intra-company transferee will fill in the U.S. determines whether L-1A or L-1B visa status is applicable. For example, a foreign national may have served in a specialized knowledge position with the qualifying foreign entity and transfer to the U.S. to fill an executive or managerial position, in which case L-1A visa status would be applicable. Likewise, a foreign national may have served in an executive or managerial role with the qualifying foreign entity and transfer to the U.S. to fill a specialized knowledge position, in which case it would be L-1B visa status.

Transferees filling executive and managerial positions in the U.S. may obtain L-1A visa status for up to seven years. Transferees filling specialized knowledge positions in the U.S. may obtain L-1B visa status for up to five years.

A person may change positions from L-1A executive/managerial to L-1B specialized knowledge or vice versa by filing an amendment with U.S. Citizenship and Immigration Services (USCIS) before the change in positions. If the transferee changes positions, however, he should remain aware of the time limits for L-1A and L-1B status, which are seven and five years, respectively. For example, if an L-1A executive/manager changes to an L-1B specialized knowledge position, he would have only five years of combined L-1A and L-1B employment in the U.S. Therefore, companies typically will change a transferee’s position from L-1B specialized knowledge to L-1A executive/manager, which gives the transferee an additional two years of L-1 employment.

After the foreign national obtains L-1A or L-1B status, the U.S. entity must maintain a qualifying corporate relationship with a foreign entity, but not necessarily the same foreign entity that employed the L-1 transferee. For example, assume a foreign national works for Foreign Company #1 in an executive position for at least one year, after which he transfers to U.S. Parent Company and obtains L-1A visa status. After entering the U.S. as an L-1A intra-company executive, Foreign Company #1 is dissolved. However, U.S. Parent Company forms a new subsidiary abroad, Foreign Company #2. In this hypothetical situation, because U.S. Parent Company continues to maintain a qualifying corporate relationship with a foreign entity, the intra-company executive transferee may continue extending L-1A status up to the 7-year limit.

The "standard procedure" for obtaining L-1 status is to file an individual L-1 petition with USCIS. If the foreign national is already lawfully present in the U.S., the company may request USCIS to change the foreign national’s status to L-1 within the U.S. However, if the foreign national is abroad when USCIS approves the L-1 petition, he must apply for and obtain an L-1 travel visa at a U.S. consular post before traveling to the U.S.

If the company meets the required criteria, it may file with USCIS a blanket L-1 petition. After approval, all qualifying foreign nationals may apply for L-1 visas directly at a U.S. consular post without having to file individual L-1 petitions with the USCIS. To qualify for an L-1 blanket, each of the following criteria must be satisfied:

The U.S. company and each of the qualifying foreign entities are engaged in commercial trade or services;

The U.S. company has an office in the U.S. that has been doing business for one year or more;

The U.S. company has three or more domestic and foreign branches, subsidiaries or affiliates; and

The U.S. company and other qualifying organizations have obtained approval of L-1 petitions for at least 10 managers, executives or specialized knowledge professionals during the previous twelve months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees.

There are several advantages to the L-1 visa category. First, there is no annual cap as with new H-1B visa petitions. Second, unlike the H-1B visa category, there are no prevailing wage requirements, and the company does not have to complete Labor Condition Applications (LCAs) and internal notices of the L-1 transferees’ wages or salaries, which the Department of Labor’s (DOL’s) regulations require for H-1B visa petitions. Furthermore, L-2 spouses are eligible for Employment Authorization Documents, which allow them to lawfully work in the U.S. while accompanying their principal L-1 visa holders. Finally, like the H-1B visa category, the L-1 expressly allows for dual intent, which means the transferee may start applying for permanent residence or a green card without adversely affecting the ability to extend temporary L-1 status.

Nevertheless, there are also some limitations to the L-1 visa category. First, the foreign national must have worked for the qualifying corporate entity abroad for at least one year. Second, there are no extensions beyond the maximum periods of admission, which are seven years for L-1A executives/managers and five years for L-1B specialized knowledge personnel. If a transferee has not obtained permanent residence or another visa status for which he is eligible before reaching the maximum limit of L-1 admission, he must depart the U.S. and work in either an executive/managerial or specialized knowledge position for a qualifying foreign entity for at least one year, after which he will again be eligible for a new period of L-1 visa status.

As more companies have used the L-1 visa category as an alternative means of employing foreign workers in the U.S. when the annual H-1B visa cap is exhausted, USCIS has increasingly narrowed its interpretation and application of the L-1 regulations to deny approvable L-1 petitions. The next article will address USCIS’ restrictive interpretation and application of L-1 regulations, as well as recent decisions from the Administrative Appeals Office and USCIS policy memoranda explaining the appropriate scope of the L-1 visa category.